The two stories provide me with an opportunity to look at the odd constitutional position of the four Territory Senators, and to speculate on whether candidate changes in either Territory could have an impact on the 2013 Federal election result.

Territory representation in the Senate is dependant on Section 122 of the Constitution, which permits the Commonwealth to make laws concerning the Territories, including representation in either House of Parliament. It was the Whitlam government that legislated to give the Australian Capital Territory and the Northern Territory representation in the Senate, the first elections for Territory Senate seats taking place at the 1975 'dismissal' election.

Each Territory was given two Senators, but rather than the fixed and staggered six-year terms given to State Senators, the Whitlam government legislated to give Territory Senators single three year terms tied to the term of the House of Representatives. The terms of Territory Senators end at the same time as members of the House of Representative with the issue of writs for an election. Elected Territory Senators take their seats at the same time as the new House members and do not have to wait until 1 July the following year like State Senators.

With two Senate seats to fill in each Territory, elections are usually straightforward. The quota for election of each member is 33.3%, which means that Labor and the Coalition have always split both Territory's representation one seat each.

In the Northern Territory, Labor has polled more than a quota at every election since 1975. The Country Liberals failed to reach a quota in 1987 when 'Joh for Canberra' Nationals nominated, but the CLP easily won on preferences. 1987 is the only Northern Territory Senate election where preferences had to be distributed. A graph of past NT Senate election results is shown below.

Labor's first preference vote in the Senate fell to 34.39% in 2010, only 1% above the quota. However, even if Labor's vote were to fall further, Green preferences should ensure that Labor retains its Senate seat. The danger for Labor would be if the controversy over Ms Peris's pre-selection were to fragment the Labor vote between the two candidates on the Labor ticket, or if there was to be a swing from Labor to the Greens caused by the pre-selection.

While the ACT, like the Northern Territory, has always split its Senate seats one each for Labor and the Coalition, the ACT seat held by the Liberal Party has seen more competion. The graph below shows the vote by party at ACT Senate elections since 1975.

At three elections, in 1983, 1984 and 1998, the Liberal vote slipped below 33.3%, forcing the final seat to preferences. On all three occassions, the Liberal vote was near enough to quota to reach the quota on the exclusion of minor parties.

This has encouraged minor parties to target the Liberal's ACT Senate seat. In 1998 the Australian Democrats came closest to breaking the major party grip by nominating former National Farmers Federation head Rick Farley. He polled 16.7%, ahead of the 9% surplus of Labor vote beyond one quota. The Liberal vote fell to a record low of 31.2%, but Christian Democrat preferences filled the Liberal quota before Labor preferences could help elect Farley.

Since 2004 the Greens have tried the same tactic, polling 16.4% in 2004, 21.5% in 2007 and 22.9% in 2010. However, the Liberal Party vote was 37.9% in 2004, 34.2% in 2007 and 33.35% in 2010. A distribution of preferences was required in 2010, but only because just enough of the Liberal vote lay with the second candidate to deny Liberal Senator Gary Humphries victory on first preferences.

In 2013 the Greens have recruited former GetUp director Simon Sheikh as their candidate.

Why the Liberal Party has been able to retain its ACT Senate seat is revealed by the graph below that plots support by party at House and Senate elections. The vote for Greens and Australian Democrats have been amalgamated. The dashed lines show party support at ACT House elections, the solid line support in the Senate.

The graph clearly reveals significant tactical voting being engaged in by ACT Labor voters. Labor normally polls close to 50% of the first preference vote in the ACT at House elections. This equates to one and a half quotas in the Senate. What many Labor voters have begun to do is split their vote, and around as many as one in five Labor voters vote Labor in the House and Green in the Senate. That is a higher rate than seen anywhere else in Australia and explains why Labor's Senate vote is much lower than its House vote, and the reverse trend for the Greens.

A lower Labor Senate vote ensures that Labor's surplus beyond the 33.3% quota will fall short of the Green's Senate vote, allowing Labor's preferences to flow to the Greens. If the Liberal Senate vote were to fall significantly short of a quota, this would allow Labor's preferences to elect a Green to the second ACT Senate seat ahead of the Liberals.

However, this requires the Liberal vote to fall below 33.3%. As the above graph shows, at most Senate elections, the Liberal vote in the Senate has been higher than its House vote. The ACT is the only jurisdiction where there has been a consistent pattern of the Liberal vote being higher in the Senate.

(At the 2010 election, the Liberal candidates drew the top spot on the ballot paper in both ACT House seats, but the party drew Column D on the Senate ballot. That may help explain the anomaly of the Liberal House vote being higher than the Senate in 2013.)

The Liberal Party is awake to the danger of losing its ACT seat and consistently spends its local advertising budget on Senate ads. The ACT is the only jurisdiction where one of the major parties devotes its advertising budget to a Senate contest. The graph above indicates the Liberal Party has been successful in convincing its supporters not to split their vote. The decision of Family First and the Christian Democrats not to contest recent ACT elections also helps the Liberal Party keep its vote above a quota.

While the Greens continue to talk up their chances of winning the second ACT Senate seat, this is only possible if the Liberal vote falls below 33.3%. While the Liberal vote has fallen at the last two election, that has been in line with national trends. The Greens vote has increased, and Labor has continued to deliver the Greens preferences, but that will not deliver victory in the ACT Senate unless there is a further fall in Liberal vote at the 2013 election.

It may be that local issues surrounding possible public service cuts under a Coalition government could bite in Canberra. However, it would unusual for the Liberal vote to fall to a record low level at the same time as it is increasing in the rest of the country.

While the Liberal Party losing its ACT Senate seat is unlikely, it is a possibility the party has to avoid. Losing the ACT Senate seat would greatly complicate the Senate position of a new Coalition government.

If Mr Seselja goes ahead with his challenge to Senator Humphries, you can expect to hear much about each candidate's level of personal support, Senator Humphries at past election, Mr Seselja at the ACT election last October.

Comments

Antony, this stuff is fascinating. I wonder when the Liberal Party will announce its preference allocation for the Division of Melbourne. As late as possible, presumably.

COMMENT: I would expect the Liberal Party to make a generic statement of intent at some point. However, I think it unlikely that specific recommendation in any seat, including Melbourne, would be made until after the close of nominations three weeks before the election.

It sounds like Labor voters in Canberra have learned the lesson of Robson Rotation from ACT Assembly elections - ie, in a PR system, you try to divide your first-preference votes as equally as possible among [number of vacancies] candidates from your team, rather than cumulating them on the candidate at the top of the ticket. Albeit with the tweak that "your team", in an ACT Senate election, for Labor voters, means the first Green (formerly Democrats) candidate rather than the second Labor candidate.

I remember one Canberran (a senior public servant) explaining this to me in 1998 as the secret that would help Rick Farley defeat Margaret Reid, if enough Labor voters took part (they didn't).

COMMENT: At the 2010 election, 98.5% of the Labor vote was for the lead candidate on the ticket, and in 1998 it was 99%, so I'm not sure the point you are making is correct.

Antony, you're citing votes cast by Labor supporters who actually voted the Labor ticket whereas I'm thinking of Labor supporters who gave their first preference to a Green or Democrat in the hope of putting the latter ahead of the top Lib - ie, of getting something like a 34-30-31 split among Labor, Liberal and Green/ Dem rather than the more usual 54-30-11 split. This group wouldn't show up as "Labor voters" in the official returns. As mentioned, I was myself evangelised by at least one of these.

COMMENT: Well splitting votes has got nothing to do with Robson rotation. In this case, it is not about polling higher than the Liberal, it is about outpolling the 2nd Labor candidate. In the past the Labor Party has avoided even this requirement by running only a single Labor candidate, which means any Labor surplus goes straight to the challenging Green or Democrat candidate.

However, as I continue to say on this subject, it does not matter what Labor and Green voters. What matters is the Liberal first preference vote. If the Liberal vote continues to be above 33.3%, it does not matter how many Labor voters split their ticket. For the Greens to win the Senate seat in the ACT, the Greens and Labor have to find some way to get Liberal supporters to change their first preference vote.

Following the consistent polling detailed above, pushing the territories towards to statehood would be an ALP and Greens priority surely. Particularly the ACT, where, short of a supportive Harradine-style independent running, it would be unlikely for the Coalition to win more than 2 of 6 seats. Has election of Senators informed (explicitly or otherwise) the debate on statehood?

COMMENT: New states do not by right receive the same number of Senators as original states. Section 121 of the Constitution states "The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit."

Antony, both you and Tom Round are assuming that people who 'split' their vote between ALP in the Reps and Greens in the Senate are died-in-the-wool ALP supporters who are voting 'tactically' to try to knock off the Liberal candidate. Tom quotes one (just one) ALP apparatchik as having tried to encourage this in 1998, and notes that he didn't have any influence on the voters. I suggest that only a very few nerds and mavens vote 'tactically' (the few who are mathematically-sophisticated and politically-fanatical at the same time), and that the real explanation for people 'splitting' their votes is that they are expressing their real first preferences. Those, quite understandable, preferences are to have an ALP member in the Reps, where governments are made, and a Green in the House of Review.

But you're right in you're overall conclusion of course. How the vote is split between ALP and Greens matters not a hoot if the Libs can get a quota, either in their own right or with the help of the piffling parties. It will be interesting to see if the Sheikh can steal a few percent of votes from the Libs as well as several percent from the ALP - not impossible but probably unlikely.

And in further answer to Kim, section 125 of the Constitution requires that the seat of government 'shall be within territory which shall have been granted to or acquired by the Commonwealth'. Doesn't quite say that the territory (small-t) can't be admitted as a State under s 121 and that it must forever fall under s 122, but it seems to imply it. And even if it could, as you point out, it wouldn't necessarily get 12 senators.

COMMENT: I disagree. Split voting occurs in the ACT because the Liberal Party and the Greens specifically campaign for Senate votes and the Labor Party doesn't. The drop off in Labor vote in the ACT Senate is greater than in any other state.

The tactical voting issue is now less relevant. If the Liberal vote fell below a quota, then Green preferences would elect a second Labor Senator and Labor preferences would elect a Green, so there is no longer a need to suppress the Labor vote.

When the Democrats challenged for the seat, it mattered that Labor's vote was depressed because the Democrats issued split tickets, so the Democrat being behind Labor wouldn't elect a Labor Senator, while Labor trailing could elect a Democrat.

Northern territory population is not much different to that of some local government areas in NSW. NSW has a senator for each of a bit over a million people. For the northern territory there is one for a bit over one hundred thousand people. More senators for territory is a hard case to make, purely on numbers before you even open your political mind. Thanks for the post Antony.

" The danger for Labor would be if the controversy over Ms Peris's pre-selection were to fragment the Labor vote between the two candidates on the Labor ticket....."
G'Day Antony,
I asked a question on this precise point a couple of weeks ago, and did not see a reply. Perhaps this post is stimulated by my previous question, but could you tease it out a bit more. thanks
charlie

COMMENT: I think it is extremely unlikely. At the 2010 election, 94% of the Labor vote were ticket votes, a single '1' above the line. For there to be any chance of Nova Peris being defeated, then first this figure would have to fall below at least 60%, unheard of since the introduction of ticket voting, and unlikely given Labor will recommend an above the line vote. The second step would be for the Greens to recommend preferences to the second Labor candidate over Nove Peris, which would raise the chances of both Labor candidates remaining in the count and Greens preferences could then put the second candidate into the lead. It would also mean the Greens would be happy to act in a manner that could prevent the election of the first female indigenous senator.

The second possibility is that the Labor vote would be so low that the Greens could win the second seat. That seems unlikely, and would require an astonishingly low Labor vote, and preferences from the CLP. And the Coalition has been suggesting they would put Labor ahead of the Greens in 2013.

Scott comments;
'Northern territory population is not much different to that of some local government areas in NSW. NSW has a senator for each of a bit over a million people. For the northern territory there is one for a bit over one hundred thousand people. More senators for territory is a hard case to make, purely on numbers'
Years ago when Shane Stone was Chief Minister of the NT his good mate Jeff Kennett was swanning around in the NT Statehood was in the air. Kennett opined that; 'Based on the population figures 2 Senators was about right for the NT'
At the time I commented that; 'based on the population figures, using NSW as the benchmark, seven senators would be 'about right' for Victoria.
The point is that senate representation is NOT based on numbers. the most appropriate comparison is with Tasmania. With approx double the population of the NT they have TWELVE Senators.
International comparison in a federal system is instructive.
In the USA the smallest states with less than one million pop. have 2 senators, as does the largest, California, with over 40 million.

COMMENT: The Constitution guarantees the original states equal representation. This can only be changed by referendum, and that referendum would also have to be passed in any state whose representation was altered.

The Constitution does not give the same representation to new states. The number of Senators any new state would be granted will be determined by the Parliament. It is highly unlikely that any future state of the Northern Territory would be granted equal Senate representation with other states.

Now that the ACT Liberals have chosen a conservative lead Senate candidate in place of the moderate retiring Senator Humphries do you expect this will prompt many Liberal voters of the small 'l' variety to opt to vote for Simon Sheikh and contribute to a fall in the Liberal Senate vote in the ACT?

COMMENT: Not necessarily. At the most recent ACT election, Seselja recorded the highest personal vote ever by an ACT Opposition Leader, and on the back of that delivered the Liberal Party three seats in Brindabella for the first time. He's quite a high profile candidate, and I'm not convinved Liberal supports are going to desert and vote Green.

The senate races appears very interesting what sort of swing would be required and in which state for the Coalition to gain a majority?

By my numbers 40 seats are to be contested with the Coalition requiring 23 to obtain a majority without relying on the DLP and Nick X.

Is as I suspect the most likely outcome that the Green's will hold balance of power in the new Senate? - which would make for another 3 years of political turmoil or a double D sometime in the first half of 2015.